Opinion
No. 1 CA-CV 14-0456
07-23-2015
In the Matter of: JENNIFER MARINELLO, Petitioner/Appellant, v. TERRANCE GLOVER, Respondent/Appellee STATE OF ARIZONA ex rel. THE DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee.
COUNSEL Katz & Bloom, P.L.C., Phoenix By Norman M. Katz Counsel for Petitioner/Appellant Best Law Firm, Scottsdale By Cynthia L. Best, Tali Collins, Robert Hendricks, Stephen Vincent Counsel for Respondent/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2006-050241
The Honorable Suzanne E. Cohen, Judge
AFFIRMED
COUNSEL Katz & Bloom, P.L.C., Phoenix
By Norman M. Katz
Counsel for Petitioner/Appellant
Best Law Firm, Scottsdale
By Cynthia L. Best, Tali Collins, Robert Hendricks, Stephen Vincent
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined. THOMPSON, Judge:
¶1 Jennifer Marinello (mother) appeals from the family court's child support determination. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The underlying factual and procedural history of this case prior to 2012 is recounted in our opinion in Glover v. Glover, 231 Ariz. 1, 289 P.3d 12 (App. 2012). In Glover, this court held that Arizona did not have subject matter jurisdiction to modify an improperly domesticated Massachusetts child support order in favor of Terrance Glover (father). Mother's appeal from that modification of child support retroactive to May 2006 resulted in the case being dismissed. The judgment now having been properly domesticated, it is back before us on the question of whether there was in fact a valid modification of the 2000 Massachusetts child support order. We, like the family court, find that the answer lies in mother's 2006 in-court stipulation.
Foreign child support judgments are domesticated pursuant to Ariz. Rev. Stat. (A.R.S.) § 25-1302(A) (Supp. 2014).
¶3 Around the time of the appeal in Glover, father again sought retroactive modification of his child support payments in the Arizona courts. Specifically, he sought to have the amount formally reduced from $1625 per month to $696 per month retroactive to May 2006, consistent with mother's September 2006 in-court stipulation. Mother opposed the modification and an evidentiary hearing was held in March 2014.
Technically, the document he filed asked for the judgment memorializing the September 2006 agreement corrected to reflect the changed dollar amount from $1625 to $695 rather than just stating it was modified as stipulated without an amount. Father also sought correction of the judgment part of the minute entry that the support had been modified by prior order. Although father seems to concede this point, we note that the September 14, 2006 minute entry actually does approve the stipulations.
¶4 The family court found mother remained bound by her 2006 in-court stipulation to the "temporary" modification, notwithstanding our determination in Glover that Arizona had no jurisdiction to grant a modification at the time. The family court stated that it had considered "the evidence, including the demeanor of the witnesses, reviewed the exhibits as well as the case history, and considered the parties' arguments" prior to ruling.
¶5 One of the findings made by the family court was
The Court is concerned that Mother is now trying to argue her call to the State [Department of Economic Security] was for arrears including May 1, 2006 forward. The Court would find that argument not credible based on the September 14, 2006 hearing. It is clear that Father was in arrears from 2002 until May 1, 2006.Using the legal theories of waiver and estoppel, the family court again held that mother was bound to the stipulated child support modification retroactive to May 2006. The court found that the outstanding arrears between 2001 and May 2006 remained and father was making payments towards it. Neither party was awarded attorney's fees, father because he had more resources and mother because the court found her claims "unreasonable." Mother timely appealed. Father did not appeal.
DISCUSSION
¶6 Mother argues on appeal that the September 2006 agreement was "disputed and impermissible" at least in part because the court had no jurisdiction and because it completely failed to address child support arrears. She further argues that the family court erred when it found by clear and convincing evidence that mother was equitably estopped from recovering the disputed child support arrearages from May 2006 forward or had waived such arrearages by her actions. To this end, mother also challenges the family court's denial of her request for attorney's fees under A.R.S. § 25-324 (Supp. 2014) and asks for fees on appeal.
Mother uses the term arrearages to cover two different time frames: before May 2006 and since May 2006.
The family court found arrearages between 2001 and May 2006 and referred the matter for a new arrearage calculation. The court noted that father had been making arrearage payments of $406.45 per month. Father did not appeal the issue of arrearages prior to May 2006, therefore we need not address that issue.
Mother next uses the term arrearages to cover the prospective difference between the Massachusetts ordered child support of $1625 and the $695 father was paying from May 2006 for upwards of fifty months. Those prospective arrearages are the issue at appeal.
In 2011, mother began to use the term arrearages to include not only the difference between the $1625 and the $695 but also the difference and all of the other elements of support like the educational fund and 10% of father's bonuses which were not explicitly mentioned in the September 2006 stipulation. To the extent that mother includes the other elements of support as arrearages on appeal, we find the child support was modified to a flat $696 without any support for those additional elements except as outlined in the 2014 order.
¶7 On appeal mother asserts we should employ a de novo standard of review, whereas father asserts we should determine the matter under an abuse of discretion standard. We agree with father that a modification of child support is reviewed for an abuse of discretion and that we view the evidence in a light most favorable to affirming that determination. See Little v. Little, 193 Ariz. 518, 520, 975 P.2d 108, 110 (1999).
¶8 We conclude that the trial court did not abuse its discretion in either finding by clear and convincing evidence that mother entered into an agreement to modify support in 2006 to $696 per month or that she knew that the agreement would be in effect until one of the parties filed a new petition with the court. Mother's actions both at the time of the 2006 hearing and subsequently, support this conclusion and negate any claim to arrears from May 2006 to October 1, 2014 the date the family court next modified the support order.
¶9 In coming to this conclusion, we have reviewed the record, including the transcripts from both the September 14, 2006, evidentiary hearing and the March 17, 2014 hearing. Because the 2006 stipulations are at the crux of this matter, we include these extended excerpts from the September 2006 hearing.
Transcript of September 2006
RE: General Stipulations
Father's counsel: Your honor, we have reached agreement on, I think, virtually everything but one issue. And what we would like to do is give you our stipulations and then each of our clients would like to address the Court on the remaining [parenting time] issue and let you make a decision based on what they say. .... Court: Fine. I mean, I'll -yeah. Okay. Well, let's hear what the agreement is. Father's counsel: All right. I'll - Mother's counsel: Do you want to say it, and I'll check it?
And later, after discussing stipulations to an expansion of father's parenting time, health insurance coverage, dealing with various holidays, privacy on phone calls, driving issues because mother had knee surgery, who would drive the child to drum lessons, cub scouts and soccer practice, the start of a wage assignment through the support clearinghouse, the pick-up schedule, father's agreement to individual counseling and co-parenting counseling and the costs thereof, and the resolution of parenting issues by email communication, the stipulation turned to the agreement on child support.
Transcript of September 2006
RE: Child Support
Father's counsel: The parties have agreed that child support—I think on a temporary basis when we were here before, we stipulated to a modification of child support to $696 a month. The parties have agreed to maintain that through the end of the year. And at such time as additional overnights are added or additional time or summer access, they will modify the support in January. . . . Have I got everything Jenny? [Mother's counsel]. .... Father's counsel: And just before I conclude with the stipulations, so that you know the one area that the parties were unable to agree on, was whether the Monday access should be every Monday overnight or only on Mondays following Mother's weekend. After discussion on the issues of scheduling, Mother's counsel: Just to clarify, the parties will meet with Dr. Weinstock in January to reassess this. .... Court: What's the parenting -what is that on parenting time adjustments for child support? What is the - Mother's counsel: We aren't using -Your determination today is not going to affect the child support that we've agreed to. That will be addressed in January. .... Father's counsel: Is there anything else? Mother's counsel: I think that covered it. Father's counsel: Did I get everything? Mother's counsel: Yep. The court swore in and questioned both mother and father as to the stipulations. This exchange occurred between the court and mother: Court: Have you heard the apparent agreement you've reached with Terrance as recited by the lawyers? Mother: Yes, sir. Court: You understand it? Mother: Yes, Your Honor. Court: Do you have any questions about it? Mother: No, Your Honor. Court: And that is the -- the agreement you've reached on these issues, correct? Mother: Yes, Your Honor. Court: In your mind also, it's a fair agreement? Mother: Yes, Your Honor. Mother went on to affirm that she entered the agreement knowingly and voluntarily and feeling it was in the child's best interests.
¶10 Other documents in the record, likewise, support the conclusion that mother stipulated to a permanent modification. In October 2006, mother's counsel signed a Stipulated Order for Modification of Parenting Time which stated the parenting time terms which had been agreed to and said "By separate order the parties have modified Father's child support obligation effective May 1, 2006." There is no mention of any end date for that modification and there is no mention of arrears. Her counsel withdrew in January 2007, avowing that the couple had no remaining issues. From January 2007 to August 2010 every documents filed concerned the scheduling and performance of psychological service.
¶11 In August 2010, the Department of Economic Security filed a notice of appearance seeking to be heard on the support and reimbursement issue. In her first appearance since 2006 on the issue of support, mother in March 2011 filed a pleading. In her "Response to Respondent's Motion to Adopt Parties' [2006] Agreement as an Order of the Court and Motion to Correct Mistake" she made clear that she did not dispute that a child support stipulation occurred during the September 2006 hearing, only that she challenged its duration. Later, in mother's Joint Prehearing Statement in July 2011, mother's position was again that there never was a "final modification," that the modification that she agreed to was temporary in nature and due to expire the following January, and that father remained liable for the additional amounts he was ordered to pay under the terms of the Massachusetts decree. Here, as in 2011, mother points to the fact that the transcript is clear that at the time of the 2006 hearing all the parties seemed to anticipate coming back to court in January 2007. Mother further asserted that father had nothing from her in writing agreeing to such a modification and that the Judgment of October 26, 2006, which was signed by both counsel and the trial judge erroneously asserted that such a modification occurred "by separate order" and thus was ineffectual.
A. Waiver
¶12 "Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment." Am. Cont'l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55, 607 P.2d 372, 374 (1980). Child support payments may not be retroactively modified by a court or by the parents. See Lamb v. Superior Court, 127 Ariz. 400, 402, 621 P.2d 906, 908 (1980); Cordova v. Lucero, 129 Ariz. 184, at 185, 629 P.2d 1020, 1021 (App. 1981) (upholding family court's finding that mother waived child support arrearages). In certain factual situations, however, a custodial parent can waive the collection of child support arrearages. Cordovo, 129 Ariz. at 186, 629 P.2d at 1022; Schnepp v. State, 183 Ariz. 24, 28, 899 Ariz. 185, 189 (App. 1995). Waiver is "a question of fact to be determined by the trier of fact." Chaney Bldg. Co. v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 272-73, 709 P.2d 904, 906-07 (App. 1985) (whether party waived contractual notice requirement question for trier of fact); Cordova, 129 Ariz. at 186, 629 P.2d at 1022. Waiver by conduct must be proven by acts inconsistent with an intent to assert that right. Am. Cont'l Life Ins., Co., 125 Ariz. at 55, 607 P.2d at 374.
¶13 The waiver of child support arrearages must be proven by clear and convincing evidence. State v. Dodd 181 Ariz. 183, 186, 888 P.2d 1370, 1374 (App. 1994) (citing Ray v. Mangum, 163 Ariz. 329, 332, 788 P.2d 62, 65 (1989) (finding mother did not waive support arrearages when she agreed to take reduced payments for a specific time while father had financial constraints and then resumed full payments) and Cordova, 129 Ariz. at 186, 629 P.2d at 1022. Clear and convincing evidence includes the standard set in Schnepp of "a waiver in writing or the custodial parent's admission that he or she intended to waive child support arrearages." See 183 Ariz. at 28, 899 P.2d at 189 (no clear and compelling evidence of waiver where there was no indication that child support would end after father signed adoption papers but the adoption was never completed).
¶14 Arizona law includes the principle that parties to a lawsuit are ordinarily bound by their stipulations. See Pulliam v. Pulliam, 139 Ariz. 343, 345, 678 P.2d 528, 530 (App. 1984). The law strongly favors stipulations and generally a "party to an action cannot stipulate to one thing and then later change her mind and withdraw her consent." Id. at 346, 678 P.2d at 531. The family court here, in an exercise of its discretion, found such a stipulation and that mother expressly, voluntarily and intentionally relinquished a known right or acted in a way that father believed she had by accepting $696 per month for more than four years without objection.
¶15 On appeal, mother does not seem to actually dispute that she agreed in-court that she had knowingly, voluntarily and intelligently agreed to a stipulation to modify the support terms with father. Rather she argues that the in-court stipulation was invalid or unenforceable because it was made in a court without jurisdiction, was merely verbal, did not address arrears, and was always meant to end in January 2007. We note that the record shows that mother and father orally agreed to stipulate to the child support modification and other terms prior to the hearing and at the hearing those stipulations were confirmed by the family court judge. And, at the time, both parties clearly believed the Arizona court had jurisdiction to modify the agreement and to order a wage assignment against father. To the extent mother claims that she did not agree to the modification, we defer to the family court's determination that she was "not credible." The trier of fact determines the credibility of witnesses. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47 ¶ 8, 83 P.3d 43, 47 (App. 2004). The trial court correctly determined that this was not a case like Schneff or Ray, where the parties' assumptions were unspoken but rather "on the record and under oath." We further agree with the court that mother is attempting to take advantage of a "legal technicality" to receive a windfall. The family court's finding that mother entered into an express stipulation with father to modify the support term is affirmed.
¶16 Our next question, then, is whether mother knew at that September 2006 hearing that any change to the modification to $696 each month required a party to file a petition for modification. We, like the family court, find ample evidence that she did, thus eliminating her claim for "arrearages" from May 2006 and going forward.
Again, we are looking at the period after May 2006 only. We do not believe the term "arrearages" is technically correct because mother is talking about the prospective difference between what Massachusetts ordered ($1625) and the modified amount of $696. The vast majority of the child support cases cited herein concern true arrearages, in other words amounts past due. Due to our resolution of this matter, we need not explore how the analysis might differ. --------
Transcript of September 2006
RE: Finality and Binding Effect of the Stipulations
Court: And it is my intention or I contemplate, I think--I hope everyone does—that this agreement be binding on you. Father: Yes, sir. Court: I guess it's -I hope it's clear. I want to bind the parties before I resolve the one issue. Father's counsel: Right. Mother's counsel: Yes, and that's the anticipation. .... Court: Now I mean it's not contemplated that you get back to me, right, without filing new papers? Counsel consult with each other, then: Mother's counsel: Your honor, I think to resolve the [parenting] issue, we have an understanding that either party following the January review will file a petition in the event there is court assistance needed.... That way you can close it out— Court: Right. Mother's counsel: We'll file our petition but neither of us will say, you can't file a petition because it's only been four months. .... Court: But I guess it's - I want to close this petition. I don't want to- Mother's counsel: Understood. Court: Yeah. So I believe she did answer in the affirmative now that as we sit here it's in [child's] best interest. And so - I don't think I asked you this Jenifer, but I contemplate that this agreement be being on you as well. Mother: Yes, Your Honor. Court: You understand that? And what I mean by that is it's not likely that I would -if either one of you has second thoughts tomorrow, for instance, let you get back in here and litigate this stuff. This is intended to be hopefully an agreement that is certainly fair and in the best interest or I wouldn't do it. But assuming that is the case, that it be binding and that it close this petition. Father's counsel: ... I think everyone contemplates that this is a steppingstone to something else. Discussion was held that they may want to return "if the parties are unable to reach agreement as to further modification of the parenting time." All of the discussion then surrounds what will happen if either party thinks the parenting time needs modified. The court states:
I won't be setting any kind of review hearing. I'll just give you final orders, and that will be it, which -and both of you may like them, both of you may not like what I do. So that's why I think it's good that the parties settle and the parties make these decisions and not me. But I'm not going to just leave this case open so that you can just get back to me with just a written request. I mean, I'm not going—I'm not inclined to do that.All agreed that if changes needed to be made a new petition would need to be filed. Father: ... I understand that we'll be revisiting this issue if we can't agree in January. Father's counsel: By filing new papers. Father: By filing new papers. Court: Right. Father: Thank you. Court: And you understand as well, Jenifer? Mother: Yes, Your Honor.
¶17 The stipulation made in court in September 2006 and the following judgment addressed many issues effecting all aspects of this domestic relations matter, yet there was no mention of arrears. The lack of any mention of arrears, mother claims, was evidence that arrears were outside any stipulation she made. We are unconvinced, as was the family court. The record supports the conclusion that mother knew in September 2006 that the stipulation would bind her until one party filed a new petition.
¶18 So, while it is true all parties contemplated returning in January 2007, it is also true that it was clear that they could return to the issue of child support only after filing new papers. And no new petitions regarding child support were filed for over four years, despite the court continuing to manage the provision of psychological services. For the above stated reasons, we find the court did not abuse its discretion in finding clear and convincing evidence that the parties in 2006 reached an express agreement modifying the child support which reasonably induced father to believe was ongoing. Nor do we find the court erred in determining that any claim that mother may have had as to the validity or temporary basis of that stipulation, she waived by failing to act in a timely manner. The trial court is affirmed. Due to the resolution of this issue, we need not address mother's claims regarding equitable estoppel or father's unclean hands.
B. Attorneys' Fees Below
¶19 On appeal below both parties sought their attorney's fees pursuant to A.R.S. § 25-324. In its analysis the family court found that while father had more resources, mother's position as to the stipulation was unreasonable. Neither party was awarded fees. We review a decision to award fees or to not award fees under an abuse of discretion standard. City of Cottonwood v. Fann, 179 Ariz. 185, 195, 877 P.2d 284, 294 (App. 1994). After our review of the record, the denial of fees by the lower court is affirmed.
C. Attorney's Fees on Appeal
¶20 On appeal both parties again seek their fees pursuant to A.R.S. § 25-324. Section 25-324 requires us to examine the financial resources and the reasonableness of the positions of each party. Father has the greater financial resources, earning approximately $5,000 per month more than mother. However, we find mother's position here continued to be unreasonable. In our discretion, neither party is awarded their attorney's fees.
CONCLUSION
¶21 For the above stated reasons, the family court is affirmed.